New Hariom Industries & Anr vs Dandi Salt P. Ltd.
2011 Latest Caselaw 4943 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+       Crl. M.C. No. 1013/2010 & Crl. M.A. 3643/2010(Stay)

%                                          Reserved on: 30th August, 2011

                                           Decided on:    3rd October, 2011


        NEW HARIOM INDUSTRIES & ANR                ..... Petitioner
                     Through: Mr. V.P. Gahiraiya, Advocate

                          versus

        DANDI SALT P. LTD.                                ..... Respondents
                       Through:         Mr. Vikas Khera, Advocate

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may        Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported          Yes
   in the Digest?

MUKTA GUPTA, J.

1. By this petition, the Petitioner confines his relief to quashing of FIR

No. 240/2009 under Section 63 of the Copyright Act registered on the

complaint of the Respondent. Though in the petition other reliefs such as

direction to the Respondent not to conduct raid at his business premises have

also been sought, however said prayers have not been pressed during

arguments.

2. Learned counsel for the Petitioner contends that both the parties are

carrying on business at Gujarat and are well-known to each other. Despite

knowledge about the Petitioners, search warrants were taken against unknown

persons. Subsequently, even the copyright of the Respondent has been

cancelled and thus it cannot claim violation of the copyright qua the

Petitioners. Learned counsel for the Petitioner contends that no document has

been filed by the Respondent to show that it was a prior user. Even perusal of

the two labels show that there is nothing common and the two labels are

clearly distinct in colour and design. Further, in the complaint nothing has

been placed except the labels and hence it cannot be proved that there was

deceptive similarity.

3. Learned counsel for the Petitioners relies upon Sh. Churiaram

Aggarwal & Anr. vs. M/s Aggarwal Sweet Corner & Anr. 1990-PTC-175 and

Pramod Kumar Bhandari vs. State 1996 PTC (16) to contend that when

warrants are obtained against unknown persons such search warrants are

liable to be quashed.

4. Learned counsel for the Respondent on the other hand contends that the

raid was conducted at the railway yard where the goods were stored. The

Respondent did not know who was the actual manufacturer and there is no

evidence placed on record by the Petitioners as well to show that the

Respondent was aware of the manufacturer. The Respondent was the

registered copyright owner at the relevant time and thus the FIR was rightly

registered. There is no document placed on record to show that the Petitioners

were the prior user or registered owner of the copyright. Reliance is placed on

Sumeet Machines Private Ltd. Nasik & Ors. vs. Sumeet Research and Holding

Ltd. & Ors.1993-PTC75 to contend that under the Copyright Act there is no

prohibition and both civil and criminal actions can be instituted

simultaneously as both the actions are not mutually exclusive but clearly co-

extensive and quite different in content and consequences.

5. I have heard learned counsel for the parties. The facts as set out in the

FIR registered on the complaint of the Respondent are that it is an old

established company having countrywide manufacturing, marketing and sale

of salt since 2000. The Respondent adopted the trademark/label „Dandi‟ in

respect of salt and other related auto parts and has been continuously using the

same. The word „Dandi‟ has been derived from the Respondent‟s trade name

and is an substantial and essential part of the tradename M/s Dandi Salt Pvt.

Ltd. The Respondent had created and adopted an artistic wrapper/packaging

in the year 2000 which was continuously used by them. The

wrapper/packaging of the Respondent is unique in its feature/make-

up/goodwill and production in the business of salt using the trademark Dandi

and Dandi label. The Respondent had applied and the label of the Respondent

was duly registered under the provisions of Indian Copyright Act, 1957. The

Respondent further claimed to be the proprietor of the said trademark/label in

respect of the said goods on account of its prior adoption and continuous user

being the originator and owner of the dandi label. According to the

Respondent some unscrupulous manufacturers/traders/persons/firms unknown

to the Respondent had brought the goods through goods-train, which were

lying in the railway yard, Aadarsh Nagar, Delhi under the false

trademark/label/copyright/packaging thus violating the Respondent‟s

trademark/copyright and its proprietary right therein. Thus it was alleged that

the accused has harmed the goodwill and reputation of the company. On the

basis of the said complaint search warrants were issued and on recovery of the

goods the abovementioned FIR was registered. The principal contention of

the Petitioners is that Respondent knew the Petitioners as both of them were

manufacturing and selling goods in Gujarat, it could not have obtained

warrants against unknown person and thus the search warrants and the

consequent registration of FIR thereon is liable to be quashed on this ground

itself.

6. In Churiaram Aggarwal (supra) this Court quashed the search warrants

as that the Petitioner therein was running his trade in a different name from

the trade-name of the Complainant and the Complainant was well aware of

the business being run by the Petitioner/Accused in the said case which fact

was admitted by the Complainant. Despite the same, he took general search

warrants. The business therein was of sweets having display board and did

not relate to the goods lying here and there. Thus the facts of Churiaram

Aggarwal (supra) are not applicable to the facts of the present case. Further

this Court took due note of the fact that the Magistrate takes cognizance of an

offence and not an offender but held that where offenders were known, the

complaint should not be filed against unknown persons. Similarly, in Pramod

Kumar Bhandari (supra) relying on Churiaram Aggarwal (supra) this Court

held that the Petitioner therein was not carrying on business clandestinely to

justify issuance of a general search warrant. Thus the facts of the two cases

are not applicable to the present case.

7. In the present case the goods were lying unidentified at the railway yard

and thus the Respondent was justified in taking search warrants against

unknown persons. Further even assuming that the search warrants were

illegally obtained, it is well-settled that the evidence collected pursuant to an

illegal search does not become inadmissible in evidence during trial. In

Pooran Mal vs. Director of Inspection (Investigation), New Delhi and others,

(1974) 1 SCC 345 the Constitution Bench of the Hon‟ble Supreme Court held

that in a criminal trial the evidence collected even pursuant to an illegal search

is not rendered inadmissible in evidence. Their Lordships held:-

"24. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. In Barindra Kumar Ghose v. Emperor, ILR 37 Cal 467:7 IC 359 the learned Chief Justice Sir Lawrence Jenkins says at pt page 500:

"Mr. Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For, without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded. As Jimutavahana with his shrewd common sense observes -- "a fact cannot be altered by 100 texts," and as his commentator quaintly remarks: "If a Brahmana be slain, the precept „slay not a Brahmana‟ does not annul the murder". But the absence of the precautions designed by the

Legislature lends support to the argument that the alleged discovery should be carefully scrutinized."

In Emperor v. Allahdad Khan, ILR 35 ALL 358:19 IC 332 the Superintendent of Police and a Sub-Inspector searched the house of a person suspected of being in illicit possession of excisable articles and such articles were found in the house searched. It was held that the conviction of the owner of the house under Section 63 of the United Provinces Excise Act, 1910, was not rendered invalid by the fact that no warrant had been issued for the search, although it was presumably the intention of the Legislature that in a case under Section 63, where it was necessary to search a house, a search warrant should be obtained beforehand. In Kuruma v. Queen, 1955 AC 197 where the Privy Council had to consider the English Law of Evidence in its application to Eastern Africa, Their Lordships propounded the rule thus:

"The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained.""

8. Thus on the ground that the search warrants were allegedly got issued

illegally against unknown persons, the FIR in question cannot be quashed. I

find no merit in the present petition. Petition and application are dismissed.

(MUKTA GUPTA) JUDGE OCTOBER 03, 2011