GEOFFREY MANNERS AND COMPANY LTD. Vs. THE STATE OF BOMBAY
LAWS(SC)-1951-5-16
SUPREME COURT OF INDIA
Decided on May 11,1951

Geoffrey Manners And Company Ltd. Appellant
VERSUS
The State of Bombay Respondents

JUDGEMENT

Harilal Jekisundas Kania, J. - (1.)THIS is an appeal from a judgment and order of the High Court at Bombay convicting the appellants under Section 6 of the Indian Merchandise Marks Act (hereafter referred to as the Act) and Section 486 of the Indian Penal Code, in respect of a toilet preparation described as "Anne French, cleansing milk" with a label affixed thereon. The relevant facts are these. The first appellant company is a private limited company, having its registered office in Bombay. Appellants Nos. 2 and 3 are the directors of the company. They were original accused Nos. 1, 2 and 5. On June 7, 1949, Dr. Dhume, Deputy Director of Industries, Department of Industries, Bombay, filed a complaint against the three appellants and two other directors of the first appellant company alleging that amongst the articles manufactured in Bombay by the accused was a facial cream called Anne French Cleansing Milk which was sold by the accused in bottles with a label on which was printed:
Anne FrenchCleansing Milk4, Old Bond St. London W1.

The label nowhere stated that the preparation contained in the bottle was produced in India. It was contended that on the contrary the whole get -up and descriptive words on the label were fraudulently intended and calculated to suggest that the bottle contained a preparation manufactured in England. The accused were selling the said preparation with the above described label through various stores, inter alia, in Bombay. One of the bottles sold by a retail dealer was purchased by Dr. Dhume on May 30, 1949, with the said label and description. The complainant, therefore, charged the accused with applying false trade description to the goods, e.g. Anne French Cleansing Milk, by affixing on the bottle containing their said preparation a label with the description fraudulently intended and calculated to convey that the said preparation was made in London whereas in fact it was manufactured in India and further selling the said goods with the aforesaid false trade description. A process was issued against all the accused and on November 4, 1949, the Magistrate framed the charge. Dr. Dhume, the shop -keeper from whom he had purchased the bottle and a Drug Inspector gave evidence. The Magistrate, on a consideration of the evidence, acquitted all the accused. The State of Bombay filed an appeal and the High Court reversed the acquittal and by their judgment dated September 13, 1950, convicted the three appellants under Sections 6 and 7 of the Act and also under Sections 482, 486 and 487 of the Indian Penal Code. The High Court passed the sentence of one month's rigorous imprisonment on accused Nos. 2 and 5 (appellants Nos. 2 and 3) and a fine of Rs. 200 under Section 6 of the Act and a sentence of three months' rigorous imprisonment and a fine of Rs. 1,000 under Section 486 of the Indian Penal Code. They did not pass any separate sentences under Section 7 of the Act or Sections 482 and 487 of the Penal Code in view of Section 71 of the Code. The substantive sentences were directed to run concurrently and substantive sentences were passed in default of payment of fine. As regards the company, a fine of Rs. 200 under Section 6 of the Act and Rs. 1,000 under Section 486 of the Indian Penal Code was imposed. The appeals against accused Nos. 3 and 4 were kept pending. Under the powers reserved to it under Section 14 of the Act the Court further ordered the three accused against whom it passed the sentence to pay the costs of the proceedings. The Court directed warrants to issue in pursuance of their judgment. In terms of that order, the writs were issued on the same day. When the transcript of the oral judgment was seen, counsel for the accused and also for the State saw the learned senior Judge in his chambers and desired that if the judgment was not signed they would like the matter to be mentioned in Court so far as the liability of the directors, viz. appellants Nos. 2 and 3, was concerned. The Judge doubted the jurisdiction of the Court to make any alteration or review of its judgment after it was pronounced in a criminal case on the Appellate Side of the High Court but allowed the matter to be argued on October 18, 1950. The Court held see, (1950) 53 Bom. L.R. 117, that it had no power to alter or review its judgment. The Court, however, granted a certificate that it was a fit case for appeal to the Supreme Court. The appellants have thereupon come in appeal.

The sections under which appellants Nos. 2 and 3 stood their trial all required a guilty intention on their part. Apart from the fact that appellants Nos. 2 and 3 were directors of the first appellant company there was no evidence on record to prove their guilty intention. In the judgment delivered by the Court on October 18, 1950, this point was noticed and the Court observed:

Therefore on the record as it stood, we would probably not have confirmed the order of acquittal but having set it aside we might either have remanded the case for fresh trial or we might ourselves have asked for fresh evidence to be recorded and certified to us.

The observations from the High Court judgment, quoted above, indicate that if the High Court had the power to review it would not have convicted appellants Nos. 2 and 3 as it had done in its first judgment. The further observations that the Court would have either remanded the matter for fresh trial or directed that additional evidence may be recorded and sent to the High Court overlook the fact that the prosecution had full opportunity to lead evidence before the Magistrate and no question of taking additional evidence to supplement the lacuna in the evidence already led could be deemed to arise. If the prosecution had omitted to prove the guilty intention of the two directors, as required by the sections under which they were charged, it will not be proper to allow them to supplement the evidence at a later stage about twenty months after the prosecution had started. In view of this state of the record, the Advocate -General of Bombay quite properly could not sustain the judgment of the High Court against them on the evidence recorded by the trial Court. The result is that the conviction of appellants Nos. 2 and 3 must be quashed and the sentences passed against them must be set aside. The order of costs made against them must also be revoked.

(2.)AS regards the first appellant company, the position is this. It is not disputed that the company had manufactured in India the "cleansing milk" and had sold the same in bottles with the label in question. Sections 6 and 7 of the Act run as follows: - -
Section 6. If a person applies a false trade description to goods, he shall, subject to the provisions of this Act, and unless he proves that he acted without intent to defraud, be punished with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees, and in the case of a second or subsequent conviction with imprisonment which may extend to one year, or with fine, or with both.

Section 7. If a person sells or exposes or has in possession for sale or any purpose of trade or manufacture, any goods or things to which a false trade description is applied...he shall, unless he proves - -

(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade description,... and

(b) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things; or

(c) that otherwise he had acted innocently,

be punished with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees, and in case of a second or subsequent conviction with imprisonment which may extend to one year, or with fine, or with both.

Section 486 of the Indian Penal Code, under which the appellant company was convicted and fined, runs as follows: - -

Whoever sells, or exposes, or has in possession for sale or any purpose of trade or manufacture, any goods or things with a counterfeit trade mark or property mark affixed to or impressed upon the same or to or upon any case, package or other receptacle in which such goods are contained, shall, unless he proves - -

(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the mark, and

(b) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things, or

(c) that otherwise he had acted innocently,

be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

It is clear that to sustain a conviction under Section 6 of the Act it is necessary to prove that there was a "false trade description". That expression is defined in Section 2(3) as follows: - -

'false trade description' means a trade description which is untrue in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement or otherwise, where that alteration makes the description untrue in a material respect, and the fact that a trade description is a trade mark or part of a trade mark shall not prevent such trade description from being a false trade description within the meaning of this Act.

The expression 'trade description' is defined in Section 2(2)(b), the relevant part of which runs as follows: - -

'trade description' means any description, statement or other indication, direct or indirect - -...

(b) as to the place or country in which, or the time at which any goods were made or produced...

On behalf of the Government it is contended that in the absence of any explanation, the statement "4 Old Bond St. London W1" considered in the position in which it has been printed on the label directly, and in any event indirectly, makes it a description as to the place or country in which the goods were made or produced, and as the goods contained in the bottles were admittedly produced in India, that trade description is untrue in a material respect as regards the goods. The Government, therefore, contend that they have established that the company had applied a false trade description to the goods. The burden of proving the exception in Section 6 is on the company and no attempt has been made to prove it. It was, therefore, contended that the conviction of the company is correct and must be sustained.

(3.)ON behalf of the company it was firstly argued that the description on the label does not necessarily convey that the contents of the bottles were manufactured in England. It was suggested that a trade mark may contain the name of a town or country, and a trade mark may be the trade mark of a manufacturer or of a dealer. It was, therefore, argued that the fact of an address being printed on a label does not amount to a description of the place in which the goods were made or produced. In our opinion, the question whether the description does or does not mean a statement of that kind is a question of fact depending on what is exactly stated in the document in question, the manner in which it is stated and also the goods in relation to which it has been stated. On such questions another judicial decision is hardly an authority as it is almost impossible to have the same facts in two cases. When evidence was given before the Magistrate no alternate suggestion was put forth on behalf of the accused and it was not suggested that any other construction was proper or even plausible. The contention that the address may be a part of the trade mark of the producer or a dealer depends on the facts proved in each case and in the absence of any evidence on record we are unable to take into consideration hypothetical questions which may arise on different facts. In our opinion, the High Court was right in its conclusion that the description "4 Old Bond St. London W1" printed on the label with the various things printed thereon when considered along with the fact that this is a toilet preparation, indirectly means a description as to the place and country in which the goods were made or produced. Unless, therefore, the first defendant company proved facts sufficient to bring its defence within one of the exceptions, it is guilty of an offence under Section 6 of the Act.
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