Delhi High Court
Sanyo Electric Co. Thr. Pankaj ... vs State on 30 August, 2010
Author: Sanjiv Khanna
CRL. REV. PETITIOIN NO. 154/2010 1
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL REVISION PETITION NO. 154 OF 2010
Reserved on : 16th August, 2010.
% Date of Decision:30th August, 2010.
SANYO ELECTRIC COMPANY THR. ITS
CONSTITUTED ATTORNEY PANKAJ GUPTA .... Petitioners
Through Ms. Nitya Ramakrishnan, Mr. Rajendra
Kumar & Mr. Aashish Marbaniang, Advocates.
VERSUS
STATE .....Respondent
Through Mr. Arvind Kumar Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported
in the Digest ? Yes.
SANJIV KHANNA, J.:
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
CRL. REV. PETITIOIN NO. 154/2010 2
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:-
CODE OF CRIMINAL PROCEDURE,
1973
"93. When search warrant may be
issued.--(1)(a) Where any Court has
reason to believe that a person to whom a
summons or order under Section 91 or a
requisition under sub-section (1) of
Section 92 has been, or might be,
addressed, will not or would not produce
the document or thing as required by such
summons or requisition, or
(b) where such document or thing is not
known to the Court to be in the
possession of any person, or
(c) where the Court considers that the
purposes of any inquiry, trial or other
proceeding under this Code will be served
by a general search or inspection,
it may issue a search warrant; and the
person to whom such warrant is directed,
may search or inspect in accordance
therewith and the provisions hereinafter
contained.
CRL. REV. PETITIOIN NO. 154/2010 3
(2) The Court may, if it thinks fit, specify
in the warrant the particular place or part
thereof to which only the search or
inspection shall extend; and the person
charged with the execution of such
warrant shall then search or inspect only
the place or part so specified.
(3) Nothing contained in this section
shall authorise any Magistrate other than
a District Magistrate or Chief Judicial
Magistrate to grant a warrant to search
for a document, parcel or other thing in
the custody of the postal or telegraph
authority.
Section 102. Power of police officer
to seize certain property.--(1) Any
police officer may seize any property
which may be alleged or suspected to have
been stolen, or which may be found under
circumstances which create suspicion of
the commission of any offence.
(2) Such police officer, if subordinate to
the officer in charge of a police station,
shall forthwith report the seizure to that
officer.
[(3) Every police officer acting under sub-
section (1) shall forthwith report the
seizure to the Magistrate having
jurisdiction and where the property seized
is such that it cannot be conveniently
transported to the Court[or where there is
difficulty in securing proper
accommodation for the custody of such
property, or where the continued retention
of the property in police custody may not
be considered necessary for the purpose of
investigation], he may give custody thereof
to any person on his executing a bond
undertaking to produce the property
before the Court as and when required and
to give effect to the further orders of the
Court as to the disposal of the same:]
[Provided that where the property seized
under sub-section (1) is subject to speedy
and natural decay and if the person
entitled to the possession of such property
is unknown or absent and the value of
CRL. REV. PETITIOIN NO. 154/2010 4
such property is less than five hundred
rupees, it may forthwith be sold by auction
under the orders of the Superintendent of
Police and the provisions of Sections 457
and 458 shall, as nearly as may be
practicable, apply to the net proceeds of
such sale.]
Section 165. Search by police
officer.--(1) Whenever an officer in
charge of a police station or a police officer
making an investigation has reasonable
grounds for believing that anything
necessary for the purposes of an
investigation into any offence which he is
authorised to investigate may be found in
any place within the limits of the police
station of which he is in charge, or to
which he is attached, and that such thing
cannot in his opinion be otherwise
obtained without undue delay, such officer
may, after recording in writing the
grounds of his belief and specifying in
such writing, so far as possible, the thing
for which search is to be made, search, or
cause search to be made, for such thing in
any place within the limits of such station.
(2) A police officer proceeding under sub-
section (1), shall, if practicable, conduct
the search in person.
(3) If he is unable to conduct the search in
person, and there is no other person
competent to make the search present at
the time, he may, after recording in
writing his reasons for so doing, require
any officer subordinate to him to make the
search, and he shall deliver to such
subordinate officer an order in writing,
specifying the place to be searched, and so
far as possible, the thing for which search
is to be made; and such subordinate
officer may thereupon search for such
thing in such place.
(4) The provisions of this Code as to
search warrants and the general
provisions as to searches contained in
Section 100 shall, so far as may be, apply
to a search made under this section.
CRL. REV. PETITIOIN NO. 154/2010 5
(5) Copies of any record made under sub-
section (1) or sub-section (3) shall
forthwith be sent to the nearest Magistrate
empowered to take cognizance of the
offence, and the owner or occupier of the
place searched shall, on application, be
furnished, free of cost, with a copy of the
same by the Magistrate.
Section 166. When officer in charge
of police station may require
another to issue search warrant.--(1)
An officer in charge of a police station or a
police officer not being below the rank of
sub-inspector making an investigation
may require an officer in charge of another
police station, whether in the same or a
different district, to cause a search to be
made in any place, in any case in which
the former officer might cause such search
to be made, within the limits of his own
station.
(2) Such officer, on being so required,
shall proceed according to the provisions
of Section 165, and shall forward the thing
found, if any, to the officer at whose
request the search was made.
(3) Whenever there is reason to believe
that the delay occasioned by requiring an
officer in charge of another police station
to cause a search to be made under sub-
section (1) might result in evidence of the
commission of an offence being concealed
or destroyed, it shall be lawful for an
officer in charge of a police station or a
police officer making any investigation
under this Chapter to search, or cause to
be searched, any place in the limits of
another police station in accordance with
the provisions of Section 165, as if such
place were within the limits of his own
police station.
(4) Any officer conducting a search under
sub-section (3) shall forthwith send notice
of the search to the officer in charge of the
police station within the limits of which
such place is situate, and shall also send
with such notice a copy of the list (if any)
CRL. REV. PETITIOIN NO. 154/2010 6
prepared under Section 100, and shall also
send to the nearest Magistrate empowered
to take cognizance of the offence, copies of
the records referred to in sub-sections (1)
and (3) of Section 165.
(5) The owner or occupier of the place
searched shall, on application, be
furnished free of cost with a copy of any
record sent to the Magistrate under sub-
section (4).
TRADE MARKS ACT, 1999
115. Cognizance of certain offences
and the powers of police officer for
search and seizure.--
(3) The offences under Section 103 or
Section 104 or Section 105 shall be
cognizable.
(4) Any police officer not below the rank
of Deputy Superintendent of Police or
equivalent, may, if he is satisfied that any
of the offences referred to in sub-section
(3) has been, is being, or is likely to be,
committed, search and seize without
warrant the goods, die, block, machine,
plate, other instruments or things
involved in committing the offence,
wherever found, and all the articles so
seized shall, as soon as practicable, be
produced before a Judicial Magistrate of
the First Class or Metropolitan
Magistrate, as the case may be:
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."
4. TM Act is a special Act relating to trade marks. Chapter XII of
the said Act in Sections 101 to 121 prescribes offences, penalties and
procedure in relation to offences etc. Section 115(4) of the TM Act is
CRL. REV. PETITIOIN NO. 154/2010 7
a part of the fascicle of the said chapter. Sub-section 3 to Section 115
of the TM Act states that offences under Sections 103, 104 and 105 of
the TM Act shall be cognizable i.e. the police can register an FIR and
start investigation without seeking approval or permission of the
court. The provisions of the Code relating to cognizable offences are
applicable except to the extent a special procedure, restriction or
prohibition to the contrary is prescribed in the TM Act.
5. Under Sections 165 and 166 of the Code, search and seizure
can be conducted by a police officer subject to the conditions
stipulated being satisfied. Similarly, under Section 102 of the Code,
police officer has power to seize any property, which is alleged or
suspected to have been stolen or found under circumstances which
create suspicion of commission of any offence. Under Sections 102,
165 and 166 of the Code, post a search and seizure operation, the
matter has to be informed and brought to the notice of the
Magistrate. Prior approval of the Magistrate is not required and
necessary. Under the said Sections, a prior warrant of the Court
which is mandated under Section 93 of the Code is not required.
6. Section 115(4) of the TM Act states that a police officer not
below the rank of Deputy Superintendent or equivalent can conduct
search and seizure operations without warrant in respect of offences
under the TM Act. This empowerment or power is similar and
analogous to the general power of search and seizure of a police
officer under Sections 102, 165 and 166 of the Code. However, to
protect the right to privacy and to ensure that the power of search
CRL. REV. PETITIOIN NO. 154/2010 8
and seizure is not misused and abused, proviso to Section 115(4) of
the TM Act stipulates and requires that the police officer should take
opinion of the Registrar of the Trade Marks on facts involved in the
offence of trade mark and the police officer shall abide by that
opinion. In other words, opinion of the Registrar is binding on the
police officer. Right to privacy being a constitutional right,
guaranteed to the citizens of India, cannot be infringed except for
valid, good and justified reasons. Right to search is an exception to
right to privacy, honour and reputation and can be denied when an
important counter veiling interest is shown to be superior (See,
District Registrar and Collector Versus Canara Bank,
(2005) 1 SCC 496). The provisions of Section 115(4) of the TM Act
including the proviso will override the general provisions of the Code
under Sections 102, 165 and 166, which relate to general power of
search and seizure by the police.
7. Section 115(4) of the TM Act relates to search and seizure by
the police without warrant. Section 93 of the Code, on the other
hand, deals with power of the Court to authorize search and seizure.
The Court can issue a search warrant when conditions mentioned in
Section 93 of the Code are satisfied. Search authorized under Section
93 of the Court is not a search without a warrant but a search under a
warrant issued by the Court after due application of mind. The words
"reason to believe" coupled with clauses (a) to (c) contemplate an
objective determination based on judicial deliberation by the Court.
The court applies its mind to decide whether or not a request for
CRL. REV. PETITIOIN NO. 154/2010 9
search and seizure made by a party should be allowed. An order
under Section 93 of the Code is a judicial order passed after weighing
and examining facts. There should be application of mind which
should be discernible from the order under section 93 of the Code.
(see V.S. Kuttan Pillai Vs. Raina Kishan, (1980) 1 SCC 264).
Thus, the power of the police to conduct searches and searches on a
warrant issued by a Court under Section 93 of the Code are distinct
and separate. It is expected and required that the court would take
due notice and will ensure that the right to privacy is not violated
except when warranted, required and justified.
8. The question raised is whether proviso to Section 115(4) of TM
Act is applicable to search warrants issued by the Courts under
Section 93 of the Code.
9. A proviso can serve four different purposes;
(1) qualifying or excepting certain provisions from
the main enactment:
(2) it may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make
the enactment workable:
(3) it may be so embedded in the Act itself as to
become an integral part of the enactment and thus
acquire the tenor and colour of the substantive
enactment itself; and
(4) it may be used merely to act as an optional
addenda to the enactment with the sole object of
explaining the real intendment of the statutory
provision.
10. However, normally a proviso is meant to be an exception to
something within the main enactment or to qualify something
enacted therein which but for the proviso would be within the
CRL. REV. PETITIOIN NO. 154/2010 10
preview of the enactment. The following quote from S.Sundaram
Pillai Versus V.R. Pattabiraman, (1985) 1 SCC 591, is apt:
"28. Craies in his book Statute Law (7th Edn.)
while explaining the purpose and import of a proviso
states at p. 218 thus:
The effect of an exception or qualifying
proviso, according to the ordinary rules of
construction, is to except out of the preceding
portion of the enactment, or to qualify
something enacted therein, which but for the
proviso would be within it.... The natural
presumption is that, but for the proviso, the
enacting part of the section would have included
the subject-matter of the proviso.
29. Odgers in Construction of Deeds and Statutes
(5th Edn.) while referring to the scope of a proviso
mentioned the following ingredients:
"p. 317. Provisos --These are clauses of
exception or qualification in an Act, excepting
something out of, or qualifying something in,
the enactment which, but for the proviso, would
be within it.
p. 318. Though framed as a proviso, such a
clause may exceptionally have the effect of a
substantive enactment"
30. Sarathi in Interpretation of Statutes at pages
294-295 has collected the following principles in
regard to a proviso:
(a)When one finds a proviso to a section the
natural presumption is that, but for the proviso,
the enacting part of the section would have
included the subject-matter of the proviso.
(b)A proviso must be construed with
reference to the preceding parts of the clause to
which it is appended.
(c)Where the proviso is directly repugnant to
a section, the proviso shall stand and be held a
repeal of the section as the proviso speaks the
latter intention of the makers.
(d)Where the section is doubtful, a proviso
may be used as a guide to its interpretation: but
when it is clear, a proviso cannot imply the
existence of words of which there is no trace in
the section.
(e)The proviso is subordinate to the main
section.
CRL. REV. PETITIOIN NO. 154/2010 11
(f)A proviso does not enlarge an enactment
except for compelling reasons.
(g)Sometimes an unnecessary proviso is
inserted by way of abundant caution.
(h)A construction placed upon a proviso
which brings it into general harmony with the
terms of section should prevail.
(i)When a proviso is repugnant to the
enacting part, the proviso will not prevail over
the absolute terms of a later Act directed to be
read as supplemental to the earlier one.
(j)A proviso may sometimes contain a
substantive provision.
31. In the case of Local Government Board v.
South Stoneham Union Lord Macnaghten made the
following observation:
"I think the proviso is a qualification of the
preceding enactment which is expressed in
terms too general to be quite accurate."
32. In Ishverlal Thakorelal Almaula v. Motibhai
Nagjibhai it was held that the main object of a proviso
is merely to qualify the main enactment. In Madras
and Southern Mahrata Railway Co. Ltd. v. Bezwada
Municipality Lord Macmillan observed thus:
"The proper function of a proviso is to except
and deal with a case which would otherwise fall
within the general language of the main
enactment, and its effect is confined to that
case."
33. The above case was approved by this Court in
CIT v. Indo Mercantile Bank Ltd. where Kapur, J.
held that the proper function of a proviso was merely
to qualify the generality of the main enactment by
providing an exception and taking out, as it were,
from the main enactment a portion which, but for the
proviso, would fall within the main enactment. In
Shah Bhojraj Kuverji Oil Mills and Ginning Factory
v. Subbash Chandra Yograj Sinha Hidayatullah, J., as
he then was, very aptly and succinctly indicated the
parameters of a proviso thus:
"As a general rule, a proviso is added to an
enactment to qualify or create an exception to
what is in the enactment, and ordinarily, a
proviso is not interpreted as stating a general
rule."
34. In West Derby Union v. Metropolitan Life
Assurance Society while guarding against the danger
of interpretation of a proviso, Lord Watson observed
thus:
"a very dangerous and certainly unusual
course to import legislation from a proviso
wholesale into the body of the statute."
35. A very apt description and extent of a proviso
was given by Lord Oreburn in Rhondda Urban
District Council v. Taff Vale Railway Co. where it was
pointed out that insertion of a proviso by the
draftsman is not always strictly adhered to its
legitimate use and at times a section worded as a
proviso may wholly or partly be in substance a fresh
enactment adding to and not merely excepting
something out of or qualifying what goes before. To
the same effect is a later decision of the same Court in
Jennings v. Kelly where it was observed thus:
"We must now come to the proviso, for there
is, I think, no doubt that, in the construction of
the section, the whole of it must be read, and a
consistent meaning, if possible, given to every
part of it. The words are:... „provided that such
licence shall be granted only for premises
situate in the ward or district electoral division
in which such increase in population has taken
place...‟ There seems to be no doubt that the
words "such increase in population" refer to the
increase of not less than 25 per cent of the
population mentioned in the opening words of
the section."
36. While interpreting a proviso care must be
taken that it is used to remove special cases from the
general enactment and provide for them separately.
37. In short, generally speaking, a proviso is
intended to limit the enacted provision so as to except
something which would have otherwise been within it
or in some measure to modify the enacting clause.
Sometimes a proviso may be embedded in the main
provision and becomes an integral part of it so as to
amount to a substantive provision itself.
38. Apart from the authorities referred to above,
this Court has in a long course of decisions explained
and adumbrated the various shades, aspects and
elements of a proviso. In State of Rajasthan v. Leela
Jain the following observations were made:
"So far as a general principle of construction
of a proviso is concerned, it has been broadly
stated that the function of a proviso is to limit
the main part of the section and carve out
something which but for the proviso would have
been within the operative part."
39. In the case of STO, Circle-I, Jabalpur v.
Hanuman Prasad Bhargava, J. observed thus:
"It is well-recognised that a proviso is added
to a principal clause primarily with the object of
taking out of the scope of that principal clause
what is included in it and what the legislature
desires should be excluded."
40. In Commissioner of Commercial Taxes v. R.S.
Jhaver this Court made the following observations:
"Generally speaking, it is true that the
proviso is an exception to the main part of the
section; but it is recognised that in exceptional
cases a proviso may be a substantive provision
itself."
41. In Dwarka Prasad v. Dwarka Das Saraf
Krishna Iyer, J. speaking for the Court observed thus:
(SCC pp. 136-37, paras 16, 18)
"There is some validity in this submission
but if, on a fair construction, the principal
provision is clean a proviso cannot expand or
limit it. Sometimes a proviso is engrafted by an
apprehensive draftsman to remove possible
doubts, to make matters plain, to light up
ambiguous edges. Here, such is the case.
* * *
If the rule of construction is that prima facie
a proviso should be limited in its operation to
the subject-matter of the enacting clause, the
stand we have taken is sound. To expand the
enacting clause, inflated by the proviso, sins
against the fundamental rule of construction
that a proviso must be considered in relation to
the principal matter to which it stands as a
proviso. A proviso ordinarily is but a proviso,
although the golden rule is to read the whole
section, inclusive of the proviso, in such manner
that they mutually throw light on each other
and result in a harmonious construction."
11. Looking at the language of Section 115(4) of the TM Act, object
and purpose behind the proviso to the said Section and Section 93 of
the Code, the proviso in the present case does not warrant a wider
application beyond the substantive Section 115(4) i.e. all searches by
the police without warrant. Legislative intent behind the proviso can
be gathered from the explicit language and words used in 115(4) of
the TM Act. The Section is confined to searches without warrants and
prevents misuse of the power of search by the police. There is no
indication in the language that the proviso is intended to apply as a
proviso to Section 93 of the Code.
12. Section 115(4) of the TM Act does not override and obliterate
the power of the court to issue a search warrant under Section 93 of
the Code. Learned ACMM has in fact exercised the power under
Section 93 of the Code and entertained the application. In other
words, learned ACMM has held that an application under Section 93
of the Code would be maintainable and the court can issue a search
warrant in spite of the power given to the police under Section 115(4)
of the TM Act to conduct search without warrant. It has been
accordingly held, and in my opinion rightly, that the two provisions
operate independently as one relates to searches pursuant to
warrants issued by the courts and the other relates to searches by
police officers without a Court warrant. The pre-requisite or pre-
conditions for a search by a police officer without warrant under the
proviso to Section 115(4) of the TM Act cannot be read into and made
a pre-condition before a search warrant issued by a court under
Section 93 of the Code is executed. Otherwise, a judicial order of the
court issuing warrant of search will be a paper order and
unexecutable unless the Registrar gives a positive opinion. It makes
a judicial order of a court ineffective till an opinion is given by the
Registrar, who has right to overwrite the judicial decision. This is not
warranted by the language of the proviso or the legislative intent
behind the proviso. The object and purpose is to control searches
without warrants by the police and not impose a post decision
precondition before warrants issued by the court are executed. If the
proviso is to apply to Section 93 of the Code, the language would have
been different and more specific. There can be cases where
immediate searches are required under the TM Act. Searches under
Section 115(4) of the TM Act may be counterproductive or self
defeating in case the time consuming process in view of the proviso
to section 115(4) of the TM Act is followed. In such cases, searches
under Section 93 of the Code after a judicial order may be more
appropriate and necessary. The legislative intent behind
empowering a police officer to conduct a search only pursuant to an
opinion of the Registrar under Section 115(4) is clearly to protect the
right to privacy and to ensure that the power of search and seizure
under Section 115(4) is not misused/abused. A judicial order serves
the same purpose and protects against misuse of the power of search.
13. In view of the aforesaid reasoning, it is held that a search
warrant issued by the court under Section 93 of the Code can be
executed without the requirement stipulated in the proviso to Section
115(4) of the TM Act. The said proviso will apply to searches made by
police officers without warrant issued by the court i.e., all searches
under Section 115(4) of the TM Act including Sections 102, 165 and
166 of the Code, except searches on a warrant issued by a court under
Section 93 of the Code.
14. The above interpretation does not mean that the court, before
issuing a warrant under Section 93 of the Code, cannot seek opinion
of the Registrar. In a given case, the court may seek opinion of the
Registrar of Trade Marks before it decides whether or not to issue a
warrant under Section 93 of the Code. This will depend upon factual
matrix of each case. There may be straight forward cases of
counterfeiting, where opinion is not necessary; but there may be
other cases where the Court may feel the necessity to have an opinion
or clarification of the Registrar before a search warrant is issued.
Courts have to keep in mind Section 110 of the TM Act and the
defences to the proceedings under Sections 102, 103, 104 and 105 of
the TM ACT. Opinion of the Registrar of Trade Marks has to be given
due weightage and consideration but will not be binding on the court.
For good and valid reasons, a court can still issue a warrant in spite
of a negative opinion of the Registrar of Trade Marks. Powers and an
order of the Appellate Board are different from an opinion of the
Registrar of Trade Mark. The court will also have to keep in mind the
provisions of Section 113 of the TM Act, if a request for a search
warrant is against a registered owner of a trade mark. The court can
also impose conditions to protect interest of the person to be
searched or stipulate that the search would not be undertaken if the
person to be searched produces material to show and establish that
he is the registered owner of the mark.
15. The revision petition is accordingly allowed but the matter is
remanded back to the learned ACMM to decide the application for
search warrant under Section 93 of the Code after considering the
aforesaid aspects.
16. The matter will be listed before the learned ACMM on 14th
September, 2010.
(SANJIV KHANNA)
JUDGE
AUGUST 30, 2010.
VKR/P
